| Matter of C.H. v F.M. |
| 2015 NY Slip Op 06345 [130 AD3d 1028] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| In the Matter of C.H., Appellant, v F.M.,Respondent. |
Joseph H. Nivin, Jamaica, N.Y., for appellant.
Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Randall K.Malone of counsel), for respondent.
Placidus Aguwa, Jamaica, N.Y., attorney for the child.
Appeal from an order of the Family Court, Queens County (John M. Hunt, J.), datedDecember 16, 2013. The order granted the father's motion, made at the close of themother's case, to dismiss the mother's petition to modify an order of custody andvisitation of that court dated June 20, 2013.
Ordered that the order dated December 16, 2013, is affirmed, without costs ordisbursements.
A final order of custody and visitation dated June 20, 2013, awarded custody of thesubject child to the mother and awarded visitation to the father as per an attachedstipulation. In October 2013, the mother filed a petition to modify the visitationprovisions of the June 20, 2013, order. The Family Court conducted a hearing and, at theconclusion of the mother's case, granted the father's motion to dismiss her petition forfailure to establish a prima facie case.
An order of custody or visitation may be modified only upon a showing that therehas been a subsequent change of circumstances such that modification is required toensure the best interests of the child (see Vollkommer v Vollkommer, 101 AD3d 1108 [2012];Matter of James R.O. vCond-Arnold, 99 AD3d 801 [2012]; Matter of Aronowich-Culhane v Fournier, 94 AD3d 1114[2012]). The best interests of the child are determined by a review of the totality of thecircumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). In decidinga motion to dismiss a petition for failure to establish a prima facie case, the court mustaccept the petitioner's evidence as true and afford the petitioner the benefit of everyfavorable inference that can reasonably be drawn therefrom (see Matter of James R.O. vCond-Arnold, 99 AD3d 801 [2012]; Matter of David WW. v Laureen QQ., 42 AD3d 685[2007]; Matter of Kerwin vKerwin, 39 AD3d 950 [2007]).
Here, even accepting the mother's evidence as true, and affording her the benefit ofevery favorable inference, the mother failed to present sufficient prima facie evidence ofa change of circumstances which would require modification of the visitation provisionsof the prior order to [*2]ensure the best interests of thesubject child (see Matter ofKerwin v Kerwin, 39 AD3d 950 [2007]). The Family Court, therefore, properlygranted father's motion, made at the close of the mother's case, to dismiss the mother'spetition for modification.
The mother correctly contends that the Family Court's questioning of her during hertestimony, which included pointed and persistent challenges to her credibility, wasinappropriate. Under the circumstances of this case, the court's conduct did not operate todeprive the mother of a fair trial. However, we take this opportunity to remind the courtthat it must strictly avoid taking on " 'either the function or appearance of anadvocate at trial' " (Matter of Jacqulin M., 83 AD3d 844, 845 [2011],quoting People v Arnold, 98 NY2d 63, 67 [2002]).
The parties' remaining contentions are without merit. Skelos, J.P., Chambers, Malteseand Duffy, JJ., concur.
Cross motion by the respondent to dismiss an appeal from an order of the FamilyCourt, Queens County, dated December 16, 2013, on the ground that it has beenrendered academic. By decision and order on motion of this Court dated June 18, 2014,the cross motion was held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof. Motion by theappellant to strike stated portions of the brief filed by the attorney for the child. Bydecision and order on motion of this Court dated January 29, 2015, the motion was heldin abeyance and referred to the panel of Justices hearing the appeal for determinationupon the argument or submission thereof.
Upon the papers filed in support of the cross motion and the papers filed inopposition thereto, and upon the papers filed in support of the motion, and no papershaving been filed in opposition or in relation thereto, and upon the submission of theappeal, it is
Ordered that the cross motion is denied; and it is further,
Ordered that the motion is granted, and those portions of the brief of the attorney forthe child which are specified in paragraphs five, seven, and eight of the affirmation ofJoseph H. Nivin dated December 1, 2014, submitted in support of the motion, aredeemed stricken and have not been considered in the determination of the appeal. Skelos,J.P., Chambers, Maltese and Duffy, JJ., concur.